Congressional Power - Legislative power in a revolutionary era

The revolutionary era bequeathed an appropriately ambivalent record
regarding the legislative role in foreign affairs. The new
country's first government, the Articles of Confederation, granted
all international authority in the Continental Congress. But this
structure proved awkward, and on two occasions the Congress divested
itself of the day-to-day conduct of diplomacy by appointing a secretary of
state for foreign affairs. At the state level, too, executive power over
militias rebounded to some degree as the revolutionary war proceeded.
Finally, almost all who served as delegates to the Constitutional
Convention agreed that the Articles regime could not permanently protect
the weak state from national security threats.

The convening of the Constitutional Convention thus coincided with a
period of intellectual ferment regarding the proper executive-legislative
balance in foreign affairs. It came as little surprise that the resulting
document gave neither branch clear-cut dominance on international matters,
but it seemed as if Congress would have the predominant voice in the new
government's foreign policy. For instance, quite beyond the power
to declare war, the legislature received the commercial powers (important
given the framers' belief that economic affairs would dominate
post-revolutionary international relations) and the ability to issue
letters of marque (the eighteenth-century equivalent of a right to wage
undeclared war). Yet legal scholarship has never developed a consensus on
the precise extent of Congress's warmaking power, partly because
the Constitutional Convention's Committee on Style changed the
Constitution's wording from giving Congress the power to
"make war" to the power to "declare war."

Beyond the warmaking issue, the question of constitutional intent grows
even murkier. Several framers, notably Gouverneur Morris and James
Madison, described the appropriations power as the ultimate guarantee of
congressional predominance in foreign affairs. But the experience of the
treaty-making clause (where, at the last minute, the framers involved the
executive in the process after initially planning to grant all
treaty-making power to the Senate) suggests that the intended balance
between the two branches changed in the president's favor as the
Constitutional Convention proceeded. Memories of the chaotic and
indecisive foreign policy of the Confederation period may very well have
caused the framers to reconsider congressional dominance in international
affairs.

The diplomacy of the early Republic, however, featured a much weaker
legislative role than even the most ardent advocates of executive
authority could have anticipated. In a variety of initiatives, George
Washington asserted executive primacy. His handling of the nation's
first treaties—with the Indian nations and then Jay's Treaty
with England (1795–1796)—decreased the Senate's
advisory capacity. His proclamation of neutrality in the wars of the
French Revolution and his response to the revolt in Haiti strengthened the
executive's hand in interpreting treaties already on the books.
When Congress investigated Arthur St. Clair's disastrous military
defeat by Indians on the Ohio frontier in November 1791, Washington
established a precedent by invoking executive privilege so that he could
withhold documents from Congress.

Although rhetorically committed to a strong foreign policy role for
Congress, Thomas Jefferson also articulated a domestic agenda that aimed
to forestall the corrupting effects of industrialization through
territorial expansion and overseas commerce. When forced to choose between
strict constructionism and his ideals, he consistently selected the
latter. The most spectacular case was the Louisiana Purchase, but the most
constitutionally significant came in the wars against the Barbary
states—North African states whose piracy threatened
Jefferson's vision of the United States carrying on an active
worldwide commerce in agricultural goods. The president undertook a naval
campaign without a direct declaration of war, and his policy would be
cited for generations to come to justify unilateral presidential
warmaking. In addition, Jefferson's effective leadership of the
Republican legislative majorities allowed him to bypass a rather supine
Congress on foreign policy matters. Even James Madison, who justifiably
lacks a reputation as a strong president, successfully expanded executive
authority. Most scholarship now downplays the significance of
congressional "warhawks" such as Henry Clay and John Calhoun
in forcing the president's hand to enter the War of 1812. Moreover,
beyond European affairs, Madison retained primacy over policy toward the
revolts in Spanish America. He consistently opposed extending diplomatic
recognition to the rebellious colonies, which, because the Senate had
power to confirm all ambassadors, would have involved the legislature in
Latin American policy. Instead, Madison relied on private agents,
unauthorized by Congress, and thus expanded executive power even further.

In contrast to such executive assertiveness, congressional attempts to
establish a foothold in international affairs floundered. As Washington
demonstrated, the treaty-making power did not guarantee a clear role for
the Senate in making foreign policy. At the same time, the failure of
House Republicans to block appropriations to implement Jay's Treaty
provided the first in a series of unsuccessful attempts by the lower
chamber to increase its international role. That this setback established
a precedent, however, would only gradually emerge; over the next quarter
century, factions within the House repeatedly challenged the
constitutionality of executive predominance in foreign policy. But such
initiatives, emanating from arch-Jeffersonian forces around Albert
Gallatin in the 1790s, the Federalists in the early 1800s, and the small
band of "Old Republicans" led by John Randolph in the 1810s,
all fell well short of majority support.